Legal impact of the Liskula Cohen court order (the “skank” decision)

RECAP

As we previously reported, a New York trial court in Manhattan has issued an order (linkable full text -or- PDF full text) that requires Google to turn over the identity of a blogger that called Liskula Cohen a “skank” and called that Ms. Cohen went “lying” and “whoring” around New York.  Several other blogs have also carried the news about Liskula Cohen — some supportive, others less supportive, and some with mixed reactions.

WHAT REALLY HAPPENED

Liskula Cohen is a Canadian-born model who worked in New York City until recently.  She still considers herself to be part of the New York “scene” even though her modelling days are nearing their end.  One day, Ms. Cohen discovered a blog called “SkanksNYC” at http://skanksnyc.blogspot.com (it has since been removed).  The blog consisted only of posts about her–all of them alleging that she was a “skank” or “ho” and that she went “whoring” around NYC, that she is a “psychotic, lying . . . skank,” and making other insinuations about her sexual activities. The blog also contained photographs that had been cropped and captioned to make it appear that Ms. Cohen was about to engage in oral sex at a nightclub.  Ms. Cohen claims that all of these claims are false: she claims that she was not about to perform oral sex at a club, that she is truthful, and that she is not promiscuous.

The blog was written anonymously, so Ms. Cohen had no way to get in touch with the author.  Ms. Cohen did what comes naturally to any American: she called a lawyer.  Her lawyer told her that she had a cause of action for defamation against the blogger who claimed that she was “psychotic” and “lying” and made it appear that she was engaging in sexual relations in a nightclub.  The only problem is that Cohen did not know who to sue: the blog was written anonymously and Google refused to tell her who wrote it.  Google said its privacy policy allows it to turn over a blogger’s name only with a court order.

So, Cohen’s lawyers sued Google to try to force Google to turn over the identity of the blogger.  The anonymous blogger lawyered-up and the blogger’s lawyer showed up at the hearing.  Under New York law, there is an established test to determine if the name of an anonymous defendant (like the blogger) can be revealed.  The test depends on whether the plaintiff (Cohen–the model) has shown that she has a good chance of succeeding in a lawsuit against the anonymous defendant (the blogger).

Here, the judge issued an order (PDF) ruling in favor of Liskula Cohen and ordering that Google turn over the blogger’s name to Cohen so that Cohen can pursue a lawsuit against the blogger for defamation.  The ruling says that Cohen has a good chance of winning her lawsuit: the blog’s use of terms like “psychotic,” “lying,” and “skankiest in New York” could be understood by a reasonable reader as factual allegations about Cohen’s character and sexual promiscuity.  And the fact that the blog used the terms repeatedly to attack Cohen (and only Cohen) suggests that the blogger was malicious in his/her blogging, rather than just commenting on the New York social scene in general.

(see analysis inside...) (more…)